JANOKI NATH ROY CHOWDHURY Vs. DINAMANI CHOWDHURANI

JUDGEMENT

(1.) On an application by the defendants under Section 622, C.P.C., a rule was granted to them in the following terms: "Let a rule issue calling on the opposite party to show cause why the judgment and decree of the lower Court made under Section 9 of the Specific relief Act, on the 30 May 1908, should not be set aside as being wholly without jurisdiction, the subject- matter in the suit being no longer in existence."

(2.) It appears that the suit was instituted on the 18 July 1904 and after deplorable delays was disposed of on 30 may 1908. It is contended on behalf of the defendants that the subject matter of the suit was not in existence on the day the judgment was passed, having been washed away, and in support of that contention, Order No. 84 of the order-sheet, dated the 1 June 1908, has been referred to. In that order we find that a certain gentleman was appointed to find out the land decreed by reference to the papers on the record. Then Order No. 86 of the 10 June 1908 shows that both parties intimated to the Court that the land had then been washed away and that it could not be found in the locality. It is, therefore, contended that when the subject-matter of the dispute had ceased to exist the learned Subordinate Judge had no jurisdiction to pass any order under Section 9 of the Specific Relief Act.

(3.) The rule was granted only with reference to the order, dated the 30 May 1908, as being wholly without jurisdiction on the ground mentioned in the rule. We have been informed by the learned Advocate-General who appears in support of the rule that it was understood at the time when the rule was granted that another question raised in the application of the defendants should be considered, namely, that when it was admitted that the plaintiff had not physical possession of the land, but that it was her tenants who were in actual physical possession no case could lie under Section 9 of the Specific Relief Act.